Slideshow: The jury's job in Apple vs. Samsung

SAN JOSE -- The nine regular Joes and Janes of the San Jose jury in the Apple vs. Samsung patent infringement case have quite a task ahead of them when they arrive at work on 9am Wednesday morning.

They must consider a case that has expanded into more than 1,900 pages of legal filings and tens of exhibits including dozens of smartphones and tablets they will have available to examine. At the end of the day, they have to answer 33 highly specific and complex multipart questions on a 20 page verdict form.

To help them do that work, they have been given by Judge Lucy Koh 84 instructions that span another 109 page document. They include explanations of arcane legal concepts such as patent exhaustion and--ironically--obviousness.

Here's a look at what they will be looking at to do their duty. Just for fun, I'll start with the instruction on the legal term of obviousness.

The only way to peddle such a fungible item is to artificially "uniquify" it with marketing dodges and "style cues," IMHO. Further, you engineers could do your fellow citizens a favour by doing the simple math to convert texts, minutes of voice, and bytes of data to bytes of data and thereby show the public how badly cell phone companies and their "packages" are rooking everyone. And how the cell phone companies (most of whom do not own a single site) could simply, like gas, electricity, and water vendors simply send you a bill at the end of the month for total bytes used. And have a gauge on your phone that would show, in dollars, your bill to date, right? Would be easy to do technically, right? If one cell phone company went to a flat rate, the rest would have to follow or shrivel up and die of embarrassment, right?

Or is some totally clueless person going to wander into Best Buy intent on buying an iPad and wander out with a Galaxy Tab (or whatever it's called) instead? There was a case where Harvey Comics sued the Ghostbusters people because one of their ghosts looked sort of like one the ghost in the Ghostbusters logo.The judge threw the case out saying, "There are only so many ways to draw a ghost." There are only so many ways to fit an LCD panel from one of the two firms that make them in a case no wider and thicker than most hands can hold yet will contain all the parts, battery, and antenna necessary for...um...utility. And, let's face it, phones are really fungible items. They all make calls, text, surf the web, etc. and meet the same international specs.

As far as I know, the all "patents" in question are "design" patents for the "trade dress" (that is the non-functional aspects of the designs) of Apple produts and not for "utility" patents. In which case, does the "non obvious' rule apply? Don't "trade dress" issues, like trademarks hinge on "confusion" rather than copying what most people would consider a real "invention"? So would Apple have us believe that from more than a couple of feet away any reasonable person with normal eyesight can tell any of the smartphones apart? Or even distinguish them from a giant Chiclet?